Terminating employees in Canada can be expensive. Non-unionized
employees are owed "reasonable notice" under the common
law, or pay in lieu of such notice, which can lead to significant
payouts to terminated employees. The only exceptions are if an
employee is employed on a fixed term, has a defined contractual
entitlement on termination or "just cause" exists for
The case law has set a very high standard for just cause. The
applicable legal test, outlined by the Supreme Court of Canada in
McKinley v BC Tel, requires courts to apply a contextual
analysis to determine whether just cause exists. The court must
consider the nature and severity of the misconduct in relation to
the impact on the employment relationship. Just cause will be found
where there is an irreparable breakdown of the employment
In order to satisfy the McKinley test, the conduct must
be serious in its impact on the employer. The employer has the
burden of proving that the employment relationship cannot be
repaired and that other options, such as discipline, would be
insufficient to restore the relationship. This makes it
challenging for employers to prove just cause, especially in
relation to a single incident of misconduct. Only the most serious
forms of misconduct will usually amount to just cause where the
employer is relying on a single incident.
Steel v. Coast Capital Savings Credit Union
Nonetheless, a recent decision of the British Columbia Court of
Appeal found just cause for dismissal of a long service employee
existed for a single incident of misconduct. In Steel v. Coast Capital
Savings Credit Union, the plaintiff was an IT Helpdesk
Analyst who had been employed with the company for over 21 years.
She was fired for cause after she accessed a confidential document
in violation of the company's internal privacy protocols.
The plaintiff was part of a team that provided internal
technical assistance to other employees of the company. The company
assigned personal folders to all of its employees which were kept
on a network. Each personal folder was to be used solely by the
employee to which it was assigned. The company had established a
detailed protocol for IT employees to follow when accessing
personal folders of other employees who required technical
assistance. The plaintiff was aware of the protocol and knew that
if she violated the protocol she could be terminated from
employment. Despite this, the plaintiff improperly and
intentionally accessed the personal file of her manager for her own
purposes. The plaintiff's employment was terminated for cause
as a result.
The trial judge found that there was cause for the
plaintiff's termination. The company had policies and protocols
in place in order to protect privacy and confidentiality. The
plaintiff was aware of these policies and expected to follow them.
In her IT role she had access to confidential documents and was in
a position of trust. The trial judge found she violated this trust
by opening a confidential document in another employee's file
for her own purposes, and by violating the protocols which governed
situations where access to such documents was permitted.
The British Columbia Court of Appeal found that the trial judge
applied the contextual approach outlined in McKinley. The
lower court considered the nature of the misconduct and whether
this was reconcilable with a continuing employment relationship.
The lower court found that a fundamental obligation of an employee
in the plaintiff's IT role was to only access confidential
documents in accordance with the privacy policies. The Court of
Appeal found that it was open to the trial judge to find that this
obligation put the plaintiff in a position of substantial trust,
and that a breach of this trust was a fundamental breakdown in the
The fact that the employer had clear privacy policies in place
and took privacy matters very seriously helped support its case for
just cause. This demonstrates the importance of having clear
written policies setting out workplace rules and procedures.
Employers without such policies often find their case for just
cause is compromised because the employee claims not to have been
aware of the policies.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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